Does the va award service connection for conditions caused by medications prescribed for non-service connected conditions.

[Richard1954]

I am taking some medications for non-service connected conditions. I have heard that sometimes a veteran can be service connected for conditions that become worse or are a result of a medication used 

for non-service connected conditions. I have not been able to find anything in my research to confirm this.   Does anyone have any ideas, or can anyone point me in a direction that will comfirm this opr shed 

some light on the subject.

 

[Richard1954]

Facutally, it is almost impossibe to get a lawyer to take on the VA in an 1151 claim. I tried in 2008 when the va screwed up my left eye. My lawyer said because the Government lawyers would not make a deal, it usually means that they arn't worried about losing in court. The lawyer I had droped my case. I told him, sure if you can get easy money why not, but the minute you have to work for pay you drop out, leaving me to wonder what to do next.

He told me because the condition that caused me to require surgery was secondary to my lung disease, I should have just filed a claim for secondary conditions. I told him sure I can do that, but since I am already 100% no matter how the va rates it, I will never receive a penny, and thats just no right. Since then I have had 4 more surgeries, the last one was to remove the IOL completly. Sure I ended up with a 60% rating, but what good did it do for me?  Not a darn thing.  I figure If I can get the BVA or the court to look at my case I should at least get a K award for lose of use, of the eye. After all $118.00  more a month will not give me my sight back, but its really not  about the money in this case, its about making the VA understand that this was advoidable, and that they screwed up, they should accept the responsiblity for it. 

 

Any way to the original question:  Anyone know of a case were service connection was awarded because of a drug prescribed for a non-service connected condition. I cannot find anything on it, and my son's friend asked me this question. I don't like not having an answer, but I don't think is possible, still the VA will surprise us from time to time.

 

[brokensoldier244th]

You don't need a lawyer for a K award. If your documentation says you were getting surgery for an SC lung condition and that surgery messed up your eye, then file it. A lawyer isn't going to touch a 118.00 claim no matter how far it goes back, unless its maybe to the Gulf War, and maybe not even that. 

[Richard1954]

57 minutes ago, brokensoldier244th said:

You don't need a lawyer for a K award.

Your reading things that I did not say.... so let me be clear....

At the time of the original damage to my eye, 2008 I filed an 1151 claim and hired a lawyer. The government lawyers would not settle, so I was ready to go to court, but the lawyer I hired to help me with the 1151 ( its really a malpractice suit), said since the governmenbt lawyers wouild not settle out of court, that he felt they were not worried about  it going to court, meaning he thought they were going to win. My lawyer quit, and I told him , " sure your willing to take easy money, but the minute you have to work you quit." 

The lawyer told me since the eye condition was caused by steriods used for my lung condition, I should just claim service connection.  Well he did not understand that while I could claim secondary to my lung condition it would not put any money in my pocket. The reason for an 1151, was because of malpractice. I had hoped to make the government to pay big money for the damage to my eye.  In the end,  I filed a seconday claim and was awarded 30%, since then its been increased to 60%.  After the final surgery completed by the VA in Nov 2000. I filed a new claim for two things, 1. A temporary 100% rating during the recovery period after the eye surgery, after appeal I was awarded a temporary 100% for 5 months,  at the time I filed for the temporary 100% I thought that it wouild boost my A&A up to the next step which would be  A&A at Step M.  However, I was disappointed to learn that a temporary 100% rating when your already rated 100% will not net the veteran a single dime nor amount to an increase step for an SMC.  2. I requested a  award for loss of use of the eye, since I no longer have a lens,, and my eye is so damaged that surgerons refuse to do another surgery,  ( I don't want another surgery either). Anyway a K award  for and eye can be awarded if the veteran has loss of  use or blindness. The VA keeps denying the claim saying loss of use is blindness.  The VA has decided to ignore the wording of the rule, and continue to deny me a K award for loss of use. Today my claim when to the BOVA, I am not hopeful that the BOVA's will grant my claim.  But I vow that I will take it all the way to the Federal courts if I have to.  All I really want is for the VA to recognize that VA doctors after five surgeries could not correct the problem, that they created in 2008.  That's what I I was referring to in my last entry.  to be sure I WAS NOT TRYING TO HIRE A LAWYER TO GET A K AWARD.

I honestly don't understand why you responded the way you did, but anyway ......

 

 

[Vync]

Regarding your damaged eye, can you see anything at all, other than just light or shapes, even with corrective lenses? That would have a bearing on loss of use. Despite being SC for an eye condition, I have not reviewed the current eye ratings to see how they would define loss of use. When I think of blindness, I think of Stevie Wonder, Ray Charles, or Helen Keller where they could not even make out light or shapes - total blackout of vision even when eyes are closed.

Here's the current SMC criteria: https://www.law.cornell.edu/uscode/text/38/1114

 

Quote

(k)

if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs, or one foot, or one hand, or both buttocks, or blindness of one eye, having only light perception, has suffered complete organic aphonia with constant inability to communicate by speech, or deafness of both ears, having absence of air and bone conduction, or, in the case of a woman veteran, has suffered the anatomical loss of 25 percent or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy) or has received radiation treatment of breast tissue, the rate of compensation therefor shall be $96 per month for each such loss or loss of use independent of any other compensation provided in subsections (a) through (j) or subsection (s) of this section but in no event to exceed $3,327 per month; and in the event the veteran has suffered one or more of the disabilities heretofore specified in this subsection, in addition to the requirement for any of the rates specified in subsections (l) through (n) of this section, the rate of compensation shall be increased by $96 per month for each such loss or loss of use, but in no event to exceed $4,667 per month;

 

M21-1 article for rating eye conditions is here: https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014461/M21-1,-Part-V,-Subpart-iii,-Chapter-2,-Section-A---General-Information-on-Requirements-for-Aid-and-Attendance-(A&A)-and-Housebound-Status-Under-38-CFR-3.351#1

 

 

For anyone who is curious about 1151s and FTCA, I'll add this non-professional opinion. I could be very wrong about some of it, but this is my unofficial interpretation:

Please keep in mind I have never filed an 1151, but have an active FTCA. From my understanding, an 1151 is filed like any other claim and would not require a lawyer. Instead of the traditional nexus for direct, presumptive or secondary, that's where the VA legal team would come in and look for the special criteria like negligence, accidents, etc... If it's something obvious like a slip and fall from a VA employee not putting out the wet floor caution sign, they could determine if that was the cause. However, if it is medically related then they would refer it for a medical advisory opinion. Some doc would then review the evidence and make an assessment, potentially maybe doing an interview or C&P exam. The doc would send their findings back to the VA legal team for a thumbs up or down decision. You can file an 1151 at any time without regards to a time limit. If an 1151 is granted, they would simply factor the rating % into your existing combined ratings table like any other disability. Losing an 1151 would result in you taking the appeals lane to the board, CAVC, etc..., or later filing a CUE if you have sufficient evidence to prove it. Berta found an old OGC opinion from the mid/late 90s which stated it is separate, but before leaving the forums she had not yet won a decision on it. She alluded to them being paid in addition to any combined rating disability, which would be awesome if it ever actually happened. After going through M21-1 and reviewing other online resources, I cannot find anything which might indicate that is should be paid completely separately, which stinks.

However, FTCA's are different because there is a two year window to submit them. A big difference in FTCAs is they require you to submit an estimate of damages in addition to your alleged damage claim. The process is very simple because the attorneys would determine if a medical advisory opinion is needed prior to making the decision. Vets who win don't get any SC status or rating percentage, it's just a cash payout, but winning an 1151 for the same thing as an FTCA could results in an offset in compensation payout in some situations. If you don't win an FTCA, you then have the right to sue the VA in Federal court like any other lawsuit and appeal any losses from there.

 

[brokensoldier244th]

5 hours ago, Richard1954 said:

Your reading things that I did not say.... so let me be clear....

At the time of the original damage to my eye, 2008 I filed an 1151 claim and hired a lawyer. The government lawyers would not settle, so I was ready to go to court, but the lawyer I hired to help me with the 1151 ( its really a malpractice suit), said since the governmenbt lawyers wouild not settle out of court, that he felt they were not worried about  it going to court, meaning he thought they were going to win. My lawyer quit, and I told him , " sure your willing to take easy money, but the minute you have to work you quit." 

The lawyer told me since the eye condition was caused by steriods used for my lung condition, I should just claim service connection.  Well he did not understand that while I could claim secondary to my lung condition it would not put any money in my pocket. The reason for an 1151, was because of malpractice. I had hoped to make the government to pay big money for the damage to my eye.  In the end,  I filed a seconday claim and was awarded 30%, since then its been increased to 60%.  After the final surgery completed by the VA in Nov 2000. I filed a new claim for two things, 1. A temporary 100% rating during the recovery period after the eye surgery, after appeal I was awarded a temporary 100% for 5 months,  at the time I filed for the temporary 100% I thought that it wouild boost my A&A up to the next step which would be  A&A at Step M.  However, I was disappointed to learn that a temporary 100% rating when your already rated 100% will not net the veteran a single dime nor amount to an increase step for an SMC.  2. I requested a  award for loss of use of the eye, since I no longer have a lens,, and my eye is so damaged that surgerons refuse to do another surgery,  ( I don't want another surgery either). Anyway a K award  for and eye can be awarded if the veteran has loss of  use or blindness. The VA keeps denying the claim saying loss of use is blindness.  The VA has decided to ignore the wording of the rule, and continue to deny me a K award for loss of use. Today my claim when to the BOVA, I am not hopeful that the BOVA's will grant my claim.  But I vow that I will take it all the way to the Federal courts if I have to.  All I really want is for the VA to recognize that VA doctors after five surgeries could not correct the problem, that they created in 2008.  That's what I I was referring to in my last entry.  to be sure I WAS NOT TRYING TO HIRE A LAWYER TO GET A K AWARD.

I honestly don't understand why you responded the way you did, but anyway ......

 

 

Because you said this-

"I figure If I can get the BVA or the court to look at my case I should at least get a K award for lose of use, of the eye."

[Richard1954]

Vync your  on the money!

 

This is what the rules say about K awards for the Eye : (o top the bottom )-  (4) Eye. Loss of use or blindness of one eye, having only light perception,

The way I read this means I am entitled to the K award for loss of use, The va continues to deny saying loss of use is blindness, and while that would be true, why doesn't 3.350 say loss of use is blindness, instead it say loss of use or blindness. Factually you can have Loss of use of an eye and not be blind, ( while my left eye is 20/200 legally blind), but VA doesn't care about this, they rate most eye conditions base on the good eye.   I do not have a lens,  I had an IOL since 2008, but it was rubbing on the iris, causeing bleeding, and gloucoma so it had to be removed.  Doctors will not insert another lens, because I would likey have the same problem, after 5 eye surgeries, I don't want another one anyway. When tested , I have count fingers at 2 feet, which means if something is two feet or closer than I can see the shape, ( as long as there is light behind the object) but that is it. I still cannot read or do anything else with the eye because with out a lens every thing is blured.    The word or is used to connect different possibilities such as: 

 

Is it Tuesday or Wednesday today?

You can pay now or when you come back to pick up the paint.

Are you listening to me or not?

The patent was granted in (either) 1962 or 1963 - I can't quite remember which.

So how can the va continue to deny a K award for my eye ? Am I missing something?

 

§ 3.350 Special monthly compensation ratings.

The rates of special monthly compensation stated in this section are those provided under 38 U.S.C. 1114.

(a) Ratings under 38 U.S.C. 1114(k). Special monthly compensation under 38 U.S.C. 1114(k) is payable for each anatomical loss or loss of use of one hand, one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, having absence of air and bone conduction, complete organic aphonia with constant inability to communicate by speech or, in the case of a woman veteran, loss of 25% or more of tissue from a single breast or both breasts in combination (including loss by mastectomy or partial mastectomy), or following receipt of radiation treatment of breast tissue. This special compensation is payable in addition to the basic rate of compensation otherwise payable on the basis of degree of disability, provided that the combined rate of compensation does not exceed the monthly rate set forth in 38 U.S.C. 1114(l) when authorized in conjunction with any of the provisions of 38 U.S.C. 1114 (a) through (j) or (s). When there is entitlement under 38 U.S.C. 1114 (l) through (n) or an intermediate rate under (p) such additional allowance is payable for each such anatomical loss or loss of use existing in addition to the requirements for the basic rates, provided the total does not exceed the monthly rate set forth in 38 U.S.C. 1114(o). The limitations on the maximum compensation payable under this paragraph are independent of and do not preclude payment of additional compensation for dependents under 38 U.S.C. 1115, or the special allowance for aid and attendance provided by 38 U.S.C. 1114(r).

(1) Creative organ.

(i) Loss of a creative organ will be shown by acquired absence of one or both testicles (other than undescended testicles) or ovaries or other creative organ. Loss of use of one testicle will be established when examination by a board finds that:

(a) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the paired normal testicle, or

(b) The diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle and there is alteration of consistency so that the affected testicle is considerably harder or softer than the corresponding normal testicle; or

(c) If neither of the conditions (a) or (b) is met, when a biopsy, recommended by a board including a genitourologist and accepted by the veteran, establishes the absence of spermatozoa.

(ii) When loss or loss of use of a creative organ resulted from wounds or other trauma sustained in service, or resulted from operations in service for the relief of other conditions, the creative organ becoming incidentally involved, the benefit may be granted.

(iii) Loss or loss of use traceable to an elective operation performed subsequent to service, will not establish entitlement to the benefit. If, however, the operation after discharge was required for the correction of a specific injury caused by a preceding operation in service, it will support authorization of the benefit. When the existence of disability is established meeting the above requirements for nonfunctioning testicle due to operation after service, resulting in loss of use, the benefit may be granted even though the operation is one of election. An operation is not considered to be one of election where it is advised on sound medical judgment for the relief of a pathological condition or to prevent possible future pathological consequences.

(iv) Atrophy resulting from mumps followed by orchitis in service is service connected. Since atrophy is usually perceptible within 1 to 6 months after infection subsides, an examination more than 6 months after the subsidence of orchitis demonstrating a normal genitourinary system will be considered in determining rebuttal of service incurrence of atrophy later demonstrated. Mumps not followed by orchitis in service will not suffice as the antecedent cause of subsequent atrophy for the purpose of authorizing the benefit.

(2) Foot and hand.

(i) Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis; for example:

(a) Extremely unfavorable complete ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more, will constitute loss of use of the hand or foot involved.

(b) Complete paralysis of the external popliteal nerve (common peroneal) and consequent footdrop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve, will be taken as loss of use of the foot.

(3) Both buttocks.

(i) Loss of use of both buttocks shall be deemed to exist when there is severe damage by disease or injury to muscle group XVII, bilateral, (diagnostic code 5317) and additional disability making it impossible for the disabled person, without assistance, to rise from a seated position and from a stooped position (fingers to toes position) and to maintain postural stability (the pelvis upon head of femur). The assistance may be done by the person's own hands or arms, and, in the matter of postural stability, by a special appliance.

(Authority: 38 U.S.C. 1114(k))

(ii) Special monthly compensation for loss or loss of use of both lower extremities (38 U.S.C. 1114(l) through (n)) will not preclude additional compensation under 38 U.S.C. 1114(k) for loss of use of both buttocks where appropriate tests clearly substantiate that there is such additional loss.

(4) Eye. Loss of use or blindness of one eye, having only light perception, will be held to exist when there is inability to recognize test letters at 1 foot and when further examination of the eye reveals that perception of objects, hand movements, or counting fingers cannot be accomplished at 3 feet. Lesser extents of vision, particularly perception of objects, hand movements, or counting fingers at distances less than 3 feet is considered of negligible utility.

Edited June 2, 2022 by Richard1954
added a question